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SECOND AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT, dated as of June 30, 2000 (this "Amendment"), is entered into among
AMPHENOL FUNDING CORP., a Delaware corporation (the "Seller"), AMPHENOL
CORPORATION, a Delaware corporation ("Amphenol"),POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION, a Delaware corporation (the "Purchaser"), and BMO NESBITT
BURNS CORP. (formerly, "Nesbitt Burns Securities, Inc."), a Delaware
corporation, as the agent for the Purchaser (in such capacity, the "Agent").
RECITALS:
WHEREAS, the Seller, Amphenol, the Purchaser and the Agent are parties to
the Amended and Restated Receivables Purchase Agreement dated as of May 19,
1997, as amended as of September 26, 1997 (the "Agreement"); and
WHEREAS, the parties hereto desire to further amend the Agreement as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used but not defined herein have
the meaning set forth in the Agreement and Appendix A thereto. In addition, the
following terms have the following respective meanings:
"Fee Letter" means the Fee Letter, dated as of the date hereof, among
Amphenol Funding Corp., Amphenol Corporation and BMO Nesbitt Burns Corp.
"Amendment No. 3 to the Liquidity Agreement" means the Amendment No. 3
to the Liquidity Agreement, dated as of the date hereof, among Pooled Accounts
Receivable Capital Corporation; Bank of Montreal, as the Liquidity Agent; BMO
Nesbitt Burns Corp., as the Servicing Agent; and Bank of Montreal, as the
liquidity purchaser.
2. Section 1.02(a) of the Agreement is hereby amended and restated in
its entirety as follows:
(a) PURCHASE LIMIT. The Aggregate Investment would exceed an
amount (the "Purchase Limit") equal to the sum of (i) $60,000,000 and
(ii) $25,000,000 (commencing from June 30, 2000), in each case, as
such amount may be reduced pursuant to Section 1.06; or
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3. Section 1.05(a) of the Agreement is hereby amended and restated in
its entirety as follows:
(a) The "Commitment Termination Date" shall be the earlier
of (i) (A) May 19, 2004 with respect to the amount described in clause
(i) of the definition of "Purchase Limit" and (B)June 29, 2001 with
respect to the amount described in clause (ii) of the definition of
"Purchase Limit" (such dates, as maybe extended, collectively herein
called the "Scheduled Commitment Termination Date"), and (ii) the date
of termination of the Commitment pursuant to Section 1.06 or Section
9.02.
4. REPRESENTATIONS AND WARRANTIES. Each of the Seller (as to itself)
and Amphenol (as to itself and with respect to each other Originator) hereby
represents and warrants to the Purchaser and the Agent as follows:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Sections 6.01 and 6.02 of the Agreement are true and
correct as of the date hereof.
(b) ENFORCEABILITY. The execution and delivery by it of this
Amendment, and the performance of its obligations under this Amendment and the
Agreement, as amended hereby, are within its corporate powers and have been duly
authorized by all necessary corporate action on its part. The Agreement (as
amended hereby) is its valid and legally binding obligations, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(c) NO DEFAULT. Both before and immediately after giving effect
to this Amendment and the transactions contemplated hereby, no Termination Event
or Unmatured Termination Event exists or shall exist.
5. EFFECT OF AMENDMENT. All provisions of the Agreement, as expressly
amended and modified by this Amendment, shall remain in full force and effect.
After this Amendment becomes effective, all references in the Agreement (or in
any other Transaction Document) to "this Agreement," "hereof," "herein" or words
of similar effect referring to the Agreement shall be deemed to be references to
the Agreement as amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any provision of
the Agreement other than as set forth herein.
6. EFFECTIVENESS. This Amendment shall become effective as of the date
hereof upon receipt by the Agent of the following, in form and substance
satisfactory to the Agent in its reasonable discretion:
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(a) an original of each of this Amendment, Amendment No. 3 to the
Liquidity Agreement and the Fee Letter (whether by facsimile or otherwise) duly
executed and delivered by each of the parties hereto or thereto;
(b) a written statement from both Moody's and S&P that this
Amendment will not result in a downgrade or withdrawal of the rating of the
Commercial Paper Notes;
(c) an acknowledgment and acceptance from Capital Markets
Assurance Corporation;
(d) certified copies of the resolutions of the boards of
directors of each of the Seller and Amphenol authorizing this Amendment, with a
certified certificate of incumbency for the officers of the Seller and Amphenol
authorized to execute this Amendment;
(e) evidence that the payment of all invoiced costs and expenses
of the Purchaser, the Agent and their respective Affiliates (including, without
limitation, the reasonable fees and expenses of counsel) pursuant to Section
14.06(a)(i) of the Agreement; and
(f) an opinion given by the general counsel of each of the Seller
and Amphenol with respect to validity and enforceability of this Amendment.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
8. GOVERNING LAW. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
9. SECTION HEADINGS. The various headings of this Amendment are
included for convenience only and shall not affect the meaning or interpretation
of this Amendment, the Agreement or any provision hereof or thereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
AMPHENOL FUNDING CORP.
By: /s/ Edward Jepsen
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Name: Edward Jepsen
Title: Executive Vice President
and Chief Financial Officer
AMPHENOL CORPORATION
By: /s/ Edward Jepsen
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Name: Edward Jepsen
Title: Executive Vice President
and Chief Financial Officer
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POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION, as Purchaser
By: /s/ Dwight Jenkins
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Name: Dwight Jenkins
Title: Vice President
BMO NESBITT BURNS CORP., as Agent
By:
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Name:
Title:
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POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION, as Purchaser
By:
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Name:
Title:
BMO NESBITT BURNS CORP., as Agent
By: /s/ James P. Walsh
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Name: James P. Walsh
Title: Managing Director
By: /s/ Jeffrey J. Phillips
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Name: Jeffrey J. Phillips
Title: Managing Director
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